Judgment on Sub Judice Matter

PLJ 2006 AJ&K 1

Present: Muhammad Reaz Akhtar Chaudhry, C.J.

MUHAMMAD SIDDIQUE RATHORE--Petitioner

versus

MUHAMMAD MUZAFFAR KHAN--Respondent

C.R.No. 144 of 2004, decided on 29.12.2004.

Civil Procedure Code, 1908 (V of 1908)--

----Ss. 10 & 115--Two suits for specific performance of agreement to sell relating to same plot--Suit filed by plaintiff was pending in civil Court at Muzzafarabad while suit filed by defendant was pending in civil Court, Islamabad--Defendants application under S. 10 C.P.C. that suit filed at Muzaffarabad he kept in abeyance till disposal of suit filed by him at Islamabad--Defendants application was rejected--Legality--Courts of Pakistan are foreign Courts--Judgment and decrees passed by those Courts were not executable in Azad Jammu and Kashmir under any provision of law--Where decrees passed by Courts of Pakistan were not executable proceedings subjudice in Azad Jammu and Kashmir cannot be kept in a abeyance on ground that on basis of same cause of action, suit was sub-judice in a Court of Pakistan--Order of trial Court refusing to keep in abeyance suit filed by plaintiff at Muzzafarable does not warrant interference in revisional jurisdiction, therefore, the same was maintained. [P. 4] A

1985 CLC 1309; PLD 1993 AJ&K 1; 1986 CLC 1309; PLD 1954 AJ&K 1 and PLJ 1976 AJ&K 9, ref.

Khawaja Muhammad Aslam Habib, Advocate for Petitioner.

Khawaja Muhammad Nasim, Advocate for Respondent.

Date of hearing : 29.12.2004.

Judgment

The supra titled revision petition is directed against the order of learned Senior Civil Judge Muzaffarabad dated 24.11.2004, whereby he has declined to keep the proceedings pending under Section 10 of CPC.

2.  The relevant and necessary facts for the disposal of the instant revision petition are, that the non-petitioner brought a suit for declaration in the Court of Civil Judge Muzaffarabad, to the effect that Plot No. 280 measuring 600 yards situated in Sector G/15/1 Khayaban-e-Kashmir Islamabad was allotted to him vide order dated 25.11.2003. He sold the said plot through an agreement to sell in lieu of Rs. 35 lac to the petitioner-defendant. An amount of Rs. 5 lac was paid through cheque while the remaining amount of Rs. 30 lac was to be paid within period of six weeks. After six weeks, the petitioner-defendant did not make payment. The plaintiff asked him to make the payment of the remaining amount, but he did not make the payment. Thus, the agreement has been revoked by him as it contained such a condition. It was craved that it may be declared that the defendant has no right on the said plot and he has not paid the remaining amount of Rs. 30 lac within the stipulated period. Therefore, now this agreement has been become void. It may be declared as such.

3.  Regarding the same plot another suit was filed by the petitioner in the Court of learned Civil Judge Islamabad for specific performance of the contract. The petitioner moved an application before the trial Court under Section 10, CPC to the effect that the suit may be kept in abeyance till the final disposal of the suit by the Court of Islamabad. This application was turned down by the trial Court. Hence the instant revision has been filed.

4.  The learned counsel for the petitioner argued that the Civil Court Islamabad has jurisdiction to try the subject-matter of the suit, because the plot is situated at Islamabad. He contended that under Section 10, CPC it was enjoined upon the trial Court to keep the proceedings in abeyance but the said Court declined to keep the same pending without any reasonable justification. He referred Section 10 of the CPC and submitted that in presence of the former suit, the subsequent suit was to be kept in abeyance, but the trial Court has failed to follow the procedure prescribed in the CPC.

5.  While controverting the arguments of the learned counsel for the petitioner, the learned counsel for the non-petitioner contended that the Court of Civil Judge Islamabad is a foreign Court and under Section 10 CPC the trial Court of Muzaffarabad was not legally competent to keep the proceedings in abeyance, on the basis of the proceedings subjudice in a foreign Court. He further contended that when the Court of Islamabad is a foreign Court and a decree of that Court is not executable in Azad Jammu & Kashmir, then how the proceedings in Azad Jammu & Kashmir Court could be stayed. He referred 1985 CLC 1309 and PLD 1993 AJ&K 1 in support of his contention.

6.  I have heard the arguments and gone through the record.

7.  Section 10, CPC visualized that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, but there is an exception to this rule which is provided in explanation which contained that:--

"The pendency of a suit in a foreign Court does not preclude the Courts in Azad Kashmir from trying a suit founded on the same cause of action."

8.  The aforesaid explanation clearly contained that the pendency of the suit in Civil Court of foreign country does not preclude the Courts in Azad Kashmir from trying the suits founded on the same cause of action. Now the question which perturbs my mind is whether the Courts of Pakistan are foreign Courts? This point has already been resolved by the High Court of Azad Jammu & Kashmir. Same like proposition arose before the Division Bench of the High Court of Azad Jammu & Kashmir in a case titled "Mian Nasir Ahmed vs. Abdur Rashid Qureshi" [1986 CLC 1309] [1312]. The relevant observations are reproduced as under:--

"The judgment and decree upon which the precept proceeded was a judgment and decree of a foreign Court which could not be executed in Azad Jammu & Kashmir with the result that since the Court of sub-Judge, Mirpur was not competent to execute the said decree he also lacked the jurisdiction and power to execute the precept because under Section 46 CPC the Court passing the decree is only empowered to issue a precept to any other Court which is competent to execute such a decree which is the foundation of such a precept. The foreign judgment has been defined in Section 2(6) of the CPC, as the judgment of the foreign Court and foreign Court according to the definition in Section 2(5) of the CPC means a Court situate outside  Azad  Kashmir   and  not  established  or  continued  by  the authority of the Azad Jammu & Kashmir Government. In view of the above definition of "foreign judgment" and "foreign Court" the Courts in Pakistan are all foreign Courts so far as the Azad Kashmir is concerned, and the judgments passed by them are foreign judgments. This has already been held in number of cases by the superior Courts of Azad Kashmir out of which PLD 1954 AJ&K 1 and PLD 1976 AJ&K 9 may be referred to. The decree passed on the basis of such judgment is not executable in Azad Kashmir as there is no provision in CPC under which the decree of the foreign Court can be executed in Azad Kashmir."

9.  In the aforesaid report it has clearly been laid down by the Division Bench of the High Court that the Courts of Pakistan are foreign Courts and the judgments and decrees passed by those Courts are not executable in Azad Jammu & Kashmir under any provision of law. When the decree passed by the Court of Pakistan is not executable in Azad Kashmir then how the proceedings subjudice in Azad Jammu & Kashmir can be kept in abeyance, on the ground that on the basis of the same cause of action, a suit is subjudice in the Court of Pakistan. Same like proposition came up for consideration before the Full Bench of the High Court of Azad Jammu & Kashmir in a case titled "Muhammad Miskeen etc. vs. Govt. of Pakistan and others" (PLD 1993 AK 1], wherein it was held that Rules of Procedure of Azad Jammu & Kashmir High Court do not restrict the jurisdiction of the High Court to proceed with a suit or proceedings which were subjudice before a High Court of Pakistan or some other country--institution of a writ petition in the High Court in Pakistan cannot stop the proceedings in Azad Jammu & Kashmir on the grounds that on the basis of same cause of action the proceedings are subjudice before the Court of Pakistan and as such was observed by the Full Bench of this Court in the aforesaid report.

10.  The upshot of the above discussion is that finding no substance in this revision petition, it is hereby dismissed with no order as to cost.

(A.A.)  Petition dismissed.